Sunday, August 19, 2012

Why Tacit Consent is Bullshit

The standard of constitutionality I laid out in my last post
is difficult to reach. It does not grant politicians as much flexibility as
they would like in shaping policy, because it forces them to cite a specific
chain of authority instead of a general concept. Moral imperialists want to
wield all kinds of powers for all sorts of reasons, regardless of whether those
powers or reasons have enough support to be enumerated in the social contract.
But naturally, these big government supporters don’t like to view such powers
as illegitimate, because that would make them the oppressors. So in order to expand
the label of legitimacy to cover more things, they’ve have attempted to change the
definition of consent. Doing so enables them to broadly reinterpret
constitutions in all sorts of loosey-goosey ways, with the ultimate objective
of legitimizing government activity mentioned nowhere in the original social
contract. This post will debunk one such fallacy – the myth of “tacit consent.”

To begin, I’d like to make an analogy. Let’s imagine that
Sarah is an attractive twenty-year old college student. Like most girls her age,
she likes to party every now and then, and the multitude of frats on her street
give her ample opportunity. One night, she feels like a good time, so she puts
on her sexiest black dress and goes to a college party with her friends. After
a few hours and many drinks, she meets an attractive guy named Mark. They start
flirting and dancing and feeling each other up. One thing leads to another, and
before long Sarah finds herself making out with Mark in an upstairs bedroom.

Now, imagine Mark were to shove her onto the bed, hold her
down, undress her and penetrate her. Sarah does not want this, but physically she
is not strong enough to get him off her, and mentally she is too shocked,
confused, and terrified to verbally protest. By definition, that would be rape,
because Sarah never consented to having sex. It would not matter that she hadn’t
explicitly told him no. It would not matter that Sarah had given every
indication of being flirtatious before that point. It would not matter if the
frat had a reputation as a hangout for easy girls, or that most girls would
have loved to have sex with someone as attractive as Mark. It would not matter
that Sarah had worn a skimpy dress, or that she’d danced with him, or that she’d
made out with him. Any of those things may have initially implied she might be
open to having sex, but since she never explicitly said that she did, Mark had
no right to assume it. He certainly had no right to forcibly hold her down on
the bed and take her. It would be preposterous to say that she had consented to
that aggression.

Now imagine that instead of remaining silent in terror, Sarah
had clearly and explicitly told Mark to his face that she definitely, assuredly
did not want to have sex with him. Imagine that he raped her anyway. How much more
preposterous would it be for Mark to claim she had consented in that situation?
If what Sarah’s location, outfit, and recent actions were insufficient to
assume consent even in the absence of
her explicit protest, then how much more absurd would it be to say that those
things overrode her explicit protest?
How much less of an excuse would Mark have to even pretend confusion about
Sarah’s intentions?

Well, what big-government advocates need to realize is that
no means no.

Consent is only consent if the person consenting does so
explicitly. There is no such thing as implied consent, and there is absolutely
no such thing as consent against one’s will. It runs contradictory to the
common sense definition of the word for somebody to “consent” to something
unwittingly. And yet that’s exactly what a huge number of political theorists
are willing to pretend in order to make big-government seem more legitimate
than it really is. They practically bend over backwards to accommodate their personal
favorite government programs. They jump through hoops to justify the idea that
failure to remove oneself and one’s property from an area is the same as
actively submitting to the government which claims that area. The term they use
for this preposterous notion is “tacit” consent (sometimes it’s also referred
to as “implied” consent).

The theory goes like this. When a constitution is initially
ratified by the people, its legitimacy can be readily measured by the people’s
decision to ratify it. Whichever people accept the social contract, submit to the
constitution’s authority and agree to be citizens of the new nation have formally
given their consent to be governed. The more of those people there are, the
more legitimate the government is. However, the trouble is that subsequent
generations remain subject to this same constitution, while never having given
their official individual consent to the government’s authority. It is often
inconvenient and impractical to formally ask each person if they accept the new
government’s authority or not. But more tellingly, it is dangerous to those in
power to give the newly governed a real choice in the matter. Carl Watner from
The Journal of Libertarian Studies explains how statist apologists responded to
this problem:

“Many political theorists were caught on the horns of this dilemma.
On the one hand, they believed in government by consent and in individual rights,
but on the other, they were not prepared to accept the anarchist implications
raised by either Filmer or Godwin. In order to try to salvage their own position, thinkers like John Locke developed and relied upon the doctrine of "tacit"
consent to prove that existing governments did in fact rest on some sort of consent.
"Tacit" consent meant that one accepted the government one lived
under simply because one continued to live in the geographic area over which it
maintained jurisdiction. Owning property according to governmental law and using government services of one sort or another indicated one's
support. "To trace the history of the tacit consent doctrine is to trace" the "tortuous route whereby political theorists...attempted to void the anarchistic
implications" of their consent doctrine.”

So, the theory goes that anybody who doesn’t physically leave
the country has “tacitly” consented to live under that government’s authority. Simply
assuming that the newcomers consent automatically is much more convenient to
those who don’t want their power delegitimized. Unfortunately, it also defies
logic and principle.

The most visible form of tacit consent theory in modern
political debate is the classic line that “well, if you don’t like the law, then
why don’t you just move? If you don’t want to be a part of our country, then
just get out!” In case you haven’t picked up on it already, I think that
argument is utter bullshit. Fellow liberty-lover Tom Woods agrees with me, and
explains why very well:

So if tacit consent is baloney, then how do I respond to
this dilemma? If any entity that governs without consent is illegitimate, and
tacit consent does not count, then how can governments remain legitimate when
governing subsequent generations? The trick, as I’ve explained earlier, is to keep
the constitution strictly in line with the prevailing universal morality of the
time. I recognize that it is impossible for government to get each and every single
person to consent. But what separates me from most political theorists is that
I’m comfortable with the logical consequence of that recognition: it is
impossible for any government to be fully legitimate. That’s okay, and it doesn’t
mean anarchy is the only option.

Illegitimate use of force on others is very bad, but as I’ve
written extensively in prior blogs, it can sometimes be justified. What
big-government backers refuse to admit is that it can only be justified to
prevent an even larger initiation of illegitimate force on others, and that
this severely limits the things which it is moral for government to do. Since mere
residency in a place does not count as consent, governments really do have to
whittle down their programs to the universally consensual parts. And if they
don’t, people who object have no moral responsibility to obey the law, whether
or not they are willing to move.